COLLINI v. PUSTEJOVSKY (2007)

MEMORANDUM OPINION1

Appellant Wendy Collini, M.D. filed this interlocutory appeal from the trial court's denial of her motion to dismiss with prejudice the health care liability claims that appellee Martha Pustejovsky raised against her.   Appellant's motion was based on appellee's alleged failure to comply with section 74.351 of the civil practice and remedies code by failing to file an adequate expert report.  Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a), (l ), (r)(6) (Vernon Supp.2006).

On January 8, 2007, we informed appellant that we were concerned about whether we have jurisdiction over this appeal because this court has held that an order denying such a motion to dismiss is not appealable by interlocutory appeal.   See Jain v. Stafford, 214 S.W.3d 94, 97 (Tex.App.-Fort Worth, 2006, no pet. h.).   We also informed appellant that unless on or before January 18, 2007, she or any party desiring to continue the appeal filed a response showing grounds for continuing the appeal, the appeal could be dismissed for want of jurisdiction.   On January 18, 2007, appellant filed a brief in support of jurisdiction.²

This court has recently held that we lack jurisdiction over an interlocutory appeal of an order denying a motion to dismiss that is based on the alleged inadequacy of a timely-filed section 74.351 expert report because such an order is not appealable under section 51.014 of the civil practice and remedies code.  Id. (holding that section 51.014(a)(9) allows an interlocutory appeal of an order denying a defendant's motion to dismiss for failure to timely file an expert report and section 51.014(a)(10) allows an interlocutory appeal of an order granting a motion to dismiss for failure to file an adequate expert report, but contains no provision for interlocutory appeal of an order denying a motion to dismiss for alleged inadequacies in expert report);  see Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(9)-(10) (Vernon Supp.2006).   Appellant's response to our jurisdiction inquiry letter does not show grounds for continuing the appeal.   Accordingly, we dismiss this interlocutory appeal for want of jurisdiction.   See Tex.R.App. P. 43.2(f);  Jain, 214 S.W.3d at 97.

FOOTNOTES

1.   See Tex.R.App. P. 47.4.

2.   Appellant also asked for en banc consideration of the issue;  this request is being denied by separate order dated the same day as this opinion.

PER CURIAM.